War Powers

Koh on the Constitutionality of WPR 60-Day Clock

By Robert Chesney
Friday, July 15, 2011, 2:34 PM

In the aftermath of Harold Koh's testimony before the Senate Foreign Relations Committee a few weeks ago, Senator Lugar sent a set of QFRs (Questions for the Record) that raised a number of interesting questions about the current position of the administration on WPR and war power issues.  Harold has now responded, and his answers are posted here.  Two points stand out.

First, Harold explicitly states that the administration endorses the view, expressed in a 1980 OLC opinion, that "Congress may, as a general constitutional mattter, place a 60-day limit on the use of our armed forces" as is done in the WPR.

Second, Harold rejected the proposition that Congress intended "hostilities" in the WPR to encompass at least all circumstances constituting "armed conflict," as the 1973 House Committee Report had suggested.  Note that he did not deny that the U.S. and NATO both are engaged in an "armed conflict" in Libya.